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Looking Back on the Accomplishments of Professor Zentaro Kitagawa
Keizo Yamamoto*
Professor Zentaro Kitagawa was born on 5 April 1932 in Kyoto Prefecture. In 1951, after entering Kyoto University’s Faculty of Science, he transferred to the Faculty of Law
as a third year student and upon graduating in 1956 he enrolled in the graduate school at
Kyoto University. In 1961, he completed his doctoral program and became an assistant
in the Kyoto University Faculty of Law before being promoted to associate professor in
1962. In the same year, he was awarded his doctoral degree in the Faculty of Law. From
1963 to 1966, he attended the University of Munich in Germany as an Alexander von
Humboldt Scholar. Following his return to Japan, in 1970 he was promoted to professor
in the Faculty of Law at Kyoto University. Professor Kitagawa also worked hard in university administration, including serving as Dean of the Faculty of Law for two years
from 1989. In 1995, he received the Medal of the Purple Ribbon from the Government
of Japan for academic accomplishment. In 1996, he retired from Kyoto University and
became professor emeritus, after which he transferred to Meijo University where he
worked in the Faculty of Law and in the Law School until 2006. In addition, he worked
as a Vice Director of the International Institute for Advanced Studies from the time of
his retirement from Kyoto University until 2009. Even after retiring from these public
appointments, he continued his tireless efforts both in Japan and abroad, until immediately prior to his passing away on 25 January this year.
Professor Kitagawa had a great many academic achievements during his career, and
it is impossible to mention all of them. On this occasion, I once again looked back over
the list of Professor Kitagawa’s achievements, and even beyond my feelings of respect, I
was reminded of my feelings of awe. Even in sheer numbers, he published 33 books (including revised editions) as sole author in Japanese, as well as one book he wrote in
German and two books that were translated into Chinese. He was the editor of 26 books
in Japanese, 8 in German and 13 in English. He authored 250 articles in Japanese and
210 other publications. He wrote 24 articles in German and 64 in English. He had 5 articles translated into Korean and 7 into Chinese. Altogether, this totals a list of 643 publications. Between 1960 and 2013, he published an average of 12 publications each year –
in other words, one publication per month. His most prolific year was 1972, with 40
*
Introduction at Professor Zentaro Kitagawa’s Remembrance Function, of 23 June 2013.
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publications in a single year. This was before the era of e-mail, computers and fax machines. How was it possible for him to produce such a number of works? Even in the
years when he served as Dean of the Faculty of Law he published between 13 and 15
publications, and this included between four and six in foreign languages. I do not know
what more to say other than this is unbelievable.
Nevertheless, it goes without saying, that what was most impressive about Professor
Kitagawa’s achievements was not quantity, but quality. His first book, A Study on Contractual Liability published in 1963, was above all visionary in its discussion of ‘contract’. In post-War civil law jurisprudence in Japan, mainstream legal sociological studies focused on field studies of pre-modern social norms in family law and rural villages.
In that context, even his highlighting of contractual breach in transactions was something new. Furthermore, he recognised a set of interests beyond those directly associated
with the contract itself, instead spanning the pre-contractual, contractual and postcontractual phases of the parties’ relationship. Professor Kitagawa proposed reconceptualising these broader interests as the basis for an expanded ‘contractual liability’ with
respect to breach of contract. This vision set the direction for subsequent contract law
theory in Japan. The book’s approach has had tremendous meaning, becoming the starting point for today’s influential trend of taking the contract as the foundation for dealing
with these sorts of problems.
Following this publication, Professor Kitagawa went to study in Germany, as I mentioned earlier. According to what I heard from him, he initially planned to deepen his
research on contract obligations. However, shortly afterwards he asked himself ‘why is a
Japanese legal scholar, who specialises in Japanese civil law, researching German law in
Germany, far from Japan?’. He found himself caught up in fundamental doubts of this
kind and ultimately shifted the direction of his research to focus on the relationship between Japanese and German law in an academic sense – that is, historically and methodologically. As a result, he found that although Japan’s Civil Code was originally influenced by French civil law, German law had had a massive effect from the Meiji era to
the Taisho era, and through this theory he identified that Japan’s civil law had been
transformed into a German legal-style system. This significance of this realisation was
obvious in explaining this theoretically as ‘doctrinal reception’ (Theorierezeption) as
opposed to ‘black letter reception’ (Kodifikationsrezeption). History and Theory of Japanese Jurisprudence, published in 1968, summed up these results, as did Reception and
Development of European Private Law in Japan, published in 1970 in German.1 These
have come to form part of the shared heritage of academia both within and outside Japan, determining the direction of subsequent Japanese civil law scholarship.
1
ZENTARO KITAGAWA, Rezeption und Fortbildung des europäischen Zivilrechts in Japan
(Frankfurt am Main 1970).
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In the 1970s, Professor Kitagawa developed research relating to the realities of contractual transactions by setting his sights on the relationship between law and social realities. This field of transactions continued to give rise to a variety of issues during Japan’s
period of high economic growth. Until that point there had not been much done in the
way of practical research and it was an untouched field. In this context, Professor Kitagawa published a series of papers in the NBL journal, which was first produced by the
Commercial Law Center, touching upon the realities of contractual transactions and surveying its theorisation. These were published in 1973 and 1976 in book form, as Modern
Contract Law (Volumes 1 & 2). These volumes were ground breaking in responding to a
vacuum in the practising legal profession at the time, and in making contracts in practice
a matter of academic interest.
Professor Kitagawa’s interest in the topic continued to change over time and ultimately broadened to include standard terms and conditions, ‘system contracts’ and
product liability among others, going beyond the framework of conventional civil law
jurisprudence. For example, he was very quick to recognise the significance of consumer issues, and contributed as a pioneer to the establishment of the legal field of ‘consumer law’. This resulted in The Consumer Law System, published in 1980, which he cultivated not only in view of private law but also public law, and this publication remains
highly valued for conceptualising a comprehensive system of consumer law which encompassed regulation by both the courts and the administration. In addition, Professor
Kitagawa proposed an original theory of intellectual property law, which, while it was
based on the insights found in civil law jurisprudence, was also in tune with the times
and based on acute insights into society and finance. His participation in the development of legislation and his active role in international conferences is especially worthy
of mention, particularly within this field. This kind of pragmatic interest led to the creation of the ‘Copymart’ concept in connection with how intellectual property should be
treated legally.
The Kyoto Comparative Law Center, established in 1981, became a supporting institution for his research promoted though his abovementioned connections to law in practice. Professor Kitagawa worked hard to push for forward-looking collaborative research
activities among industry, government and academia during his time as director of the
Center until 2005, and then as special advisor. This Center has come to play a major role
as a hub between the worlds of academia and legal practice.
As I have mentioned, Professor Kitagawa’s activities developed broadly, but I think
that his interests were centered on a systematic understanding of civil law. Applying the
traditional abstract and conceptual system of civil law, it is not possible to respond to
various problems which arise as a result of the changing times and various social realities. To overcome this problem, we need to take civil law as a functional ‘open system’
that can provide a legal response to those problems and their solutions. This concept was
illustrated in Theory and Systems of Civil Law, published in 1987. Professor Kitagawa’s
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concept was refined in the volumes Outline of Civil Law (Volumes 1-6), published by
Yuhikaku from 1995 to 1997.
However, to take it one step further, I would say that Professor Kitagawa’s interest
was not just in the solution of a problem, but in the comprehension of a problem itself.
According to his conception it is possible to consider and appropriately position not only
existing problems, but also any problems that may arise in the future. By securing a
place for each matter related to civil law, a civil law system can be constructed on a meta-level which could subsume civil law as positive law even if its content will be somehow transformed. In this way, the world of civil law can be grasped in its entirety. What
he aimed for was the academic implementation of this idea, and he continued to be a
scholar, straight down the line, in the truest sense of the word. This is what I felt once
more when I read his final article, ‘The Basic Framework of Business Law’, published
in the Civil and Commercial Law Journal (Minshoho Zasshi) at the end of last year.
In addition to the achievements I have already outlined, Professor Kitagawa also
played a leading role in international exchange. In particular there was his relationship
with Germany, and following his initial studies abroad, this included visiting professorships at the University of Munich in 1974 and 1995, as well as at the University of Marburg in 1988 and 1994. In 1989, he received an honorary doctorate from the University of
Marburg. He was also celebrated for his contribution to international exchange over
many years. He was awarded the Philipp Franz von Siebold Award in 1984, and in 1991,
he was awarded the Order of Merit of the Federal Republic of Germany (Merit Cross 1st
Class) in addition to having a Festschrift published in honour of his 60th birthday. This
project was planned by Professor Kitagawa’s friend, University of Marburg Professor
Hans Georg Leser, with Professor Tamotsu Isomura who was also a visiting professor at
the University of Marburg, and most of the 59 authors who contributed manuscripts were
German researchers. Professor Kitagawa also worked hard to promote international exchange with English-speaking countries – in 1969 he was a visiting professor at Harvard,
and again at the University of Washington in 1973. In particular, Doing Business in Japan, which he edited and contributed to from 1980 and spanned a total of 10 volumes, is
still well-regarded today as an important source of information regarding contemporary
Japanese law, which can be accessed in English.
These activities in international exchange would not have been possible without Professor Kitagawa’s excellent linguistic abilities. When I became his assistant, I observed
him at a conference attended by Germans, Americans and Japanese, speaking in different languages as was needed – German to the right, English to the left and Japanese to
the front – a recollection which had a significant impact on me. But it goes without saying that it is not language ability alone which makes international exchange work. More
than anything else, I imagine the biggest contributing factor was the fact that his approach to problem-solving had such universality. The creative vision which he spoke of
was much respected, often especially overseas. This speaks of the way in which Professor Kitagawa had a presence that went far beyond Japan as a country.
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Undoubtedly, he would be unhappy for me to emphasise only his research activities,
and rightly so. This is because Professor Kitagawa took pride in having put extraordinary efforts not only into research, but into education as well. In fact, he had over
600 seminar students, and this group has produced a large number of talented people in
various fields. Even considering just the academics that I know personally, from among
his former students there are over 10 Japanese alone, as well as countless former exchange students from Korea, China, the US, Germany and elsewhere, all of them leaders
in their fields. This is the result of his educational abilities. However, this does not mean
that he spoon-fed his students. Rather, in Professor Kitagawa’s case, instead of teaching
students something, his basic policy was to give each their freedom. This approach was
well suited to the Kyoto University tradition. However, Professor Kitagawa added one
further, very important point, which was that he only looked for each person’s good
points. Usually, if you are yourself skilled at something, you tend to find yourself looking at others in a negative light. But even if someone had a number of negative characteristics, Professor Kitagawa’s habit was to say ‘he does this well’ or ‘she is working on
something interesting’. His pedagogy was to use those positive characteristics as the
foundation on which to extend a person’s abilities. Professor Kitagawa was not necessarily conscious of the fact that he did this in practice. I think that it came perfectly natural to him to view people positively. I am sure that people tried to go beyond themselves, precisely because they expected Professor Kitagawa to look at them in this way.
For this, too, I am grateful to him from the bottom of my heart.
Lastly, please allow me to add a few personal remarks. The first time I received guidance from Professor Kitagawa was in a one-year seminar from the end of 1982. When I
think back to it now, it was a great privilege to be a part of that seminar. Afterwards, I
stayed on at Kyoto University at Professor Kitagawa’s invitation and I was able to be
mentored by him for close to 15 years until his retirement. Unfortunately, in recent times
I have only seen him occasionally, at editorial meetings for the Civil and Commercial
Law Journal, and he left us before I had the opportunity to talk to him properly. I regret
that I could not tell him directly the kinds of things that I have said here. However I did
hear from Professor Kitagawa’s wife that on seeing his former students, including myself, having developed our careers, he had remarked ‘I am proud’. If we look back at
what he accomplished there is no match for him, even compared to the success that all
of his former students had achieved in the aggregate. Typically, Professor Kitagawa
sought to guide us with praise. The only way to repay our debt to such a teacher is by
striving to do work that he would be truly proud of, and to do so in a way that bears
even a little fruit from the seeds sown by him.
Looking Back from Abroad on the Accomplishments of
Professor Zentaro Kitagawa
Harald Baum / Luke Nottage
For the numerous foreign students and guest researchers from all parts of the world who
remember Professor Zentaro Kitagawa as a most kind, helpful, encouraging and efficient host at the justly renowned Kyoto University Law Faculty, his name will for ever
be a synonym for “doing research in Japan”. His willingness to welcome so many different young scholars over the decades was based on a wide-ranging interest in comparative law, spanning not only the legal orders of the civil law tradition (namely the German and French), but also those of the common law world (including the US and AngloCommonwealth legal regimes). To cite but one fruit of his broad interests, Professor
Kitagawa was a path breaker among private law scholars in exploring deeply and early
not only the German and French laws of contract but also US contract law. But his interest did not stop there. He was equally engaged as a builder of bridges to various
Asian legal systems, from the very beginning – long before engagement with “Asian
law” became fashionable.
This broader worldview and intellectual curiosity also led Professor Kitagawa to
write and teach inspiringly about important transnational topics and legal instruments,
including the UN Sales Convention and strict product liability regimes. We vividly recall the international nature of Professor Kitagawa’s seminars, where we not only met
each other – eventually resulting in a close cooperation that has spanned different continents and lasted already for nearly a quarter of century. Those seminars also gave us the
chance to meet the future elite among Japanese academics as well as an excellent mix of
foreign researchers with in interest in Japan’s from China, the US or any other country
one can think of. Again, lasting cooperations grew out of these early contacts.
Professor Kitagawa once famously complained that comparative law had become “a
one way street” between Japan and most western legal orders for over a century after
Japan reopened to the world in 1868. If one looks today at the enduring and deep interest that Japanese law finds in the US, Australia, the UK, Germany or France – to name
but a few “western” countries – this critique is obviously no longer true. One important
cause for this positive change was his own highly successful engagement in actively
promoting two-way legal exchanges with Japan, including through encouraging and
welcoming so many young and mid-career legal comparativists.
Professor Kitagawa was particularly well suited for this task, as his academic interest
was not restricted to contract law or other aspects of civil law in a narrow sense, but included various neighbouring fields of law and disciplines – ranging from intellectual
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property to legal sociology. He had the ability to encourage and stimulate his guests to
explore these venues, as well as the generosity to assist those of his guests with interests
in fields he did not completely cover, by finding additional guidance from other colleagues. Being a true teacher he did not mind what his “deshi” did with their lives, only
that they excelled in whatever they did – in academia, legal practice or elsewhere. Of the
many contacts we have had in our academic lives, the formative contact with Professor
Zentaro Kitagawa is one that will always stand out.